Prof. Clark
Civil Procedure Outline Spring 2016
Use IRAC
Consider all rules in a fact pattern that may be related to a given fact pattern
Remember: Any changes to the pleading (adding a party, claim, etc.) must start with Rule 15
Litigation Timeline:
Before Trial
Pleadings Rules:8, 15, 11, 12(b)
Joinder and Claims Rules: 13, 20, 14, 18, 24
Notice and Services of Process
Governing Rule: 4 – Summons
Service of process
A summons must be served with a copy of the complaint
Service requires constitutional and statutory compliance
Constitution requires that service is reasonably calculated to provide a defendant with actual notice of the action and afford them an opportunity to present their objections.
The plaintiff is responsible for having the summons served by someone 18 or older; or at the plaintiffs request the court may order service made by a US Marshall or by a person specially appointed by the court
Time Limit for Service
A plaintiff must serve a defendant within 120 days after the complaint is filed. If not, the court must dismiss the action.
Due process requires that the defendant actually be made aware of the lawsuit
4(e) – to serve an individual
Follow the state law for service; OR
Do any of the following:
Deliver a copy of the summons and of the complaint to the individual personally
Leave a copy of each at the individuals dwelling or usual place of abode with someone of suitable age who resides there.
Deliver a copy of each to an agent authorized by appointment or by law to receive service
Personal Service
The most desirable because you physically hand the papers over.
Touching the papers is not always required. Bolted gate and bodyguards – personal service was held when the process server threw the notice over the gate and also mailed a copy to the defendant
4(h) – to serve a corporation
Same way you serve an individual or
Deliver a copy of the summons and the complaint to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process
4(d)(1) Waiving Service
A plaintiff can notify a defendant that service is coming and request a waiver of service. The waiver must include
Be in writing and be addressed to the individual
Name the court where the complaint was filed
Be accompanied by a copy of the complaint
Inform the defendant of the consequences of waiving
State the date when the request was sent
Give reasonable time to return
Be sent via first class mail or other reliable means
4(d)(2) failure to waive
Defendant imposes the expenses incurred on the defendant
4(d)(3) Benefits to waiving service
Extension of time to answer. Defendant gets 60 days instead of 30
Mullane v Central Hanover Bank & Trust
Statutory notice to known beneficiaries is inadequate not because it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand.
Pleadings
Governing Rule: 8 – The complaint
Rule 8(a): The plaintiff in their complaint has the burden of pleading the basis for the court’s jurisdiction over the matter, “short and plain” statement of the claim showing an entitlement to relief, and the demand for relief sought
Claim for relief requires 3 things
Statement of jurisdiction
Short, plain statement of the claim, a claim showing the plaintiff is entitled to relief;
And demand for relief sought
Rule 8(a)(2):
Complaint must give Defendant fair notice – no conclusions
Two part test:
Veracity of Facts
Can the facts be proven
Assume the facts as true, separating the facts from conclusions
Are the facts plausible to entitle the plaintiff to relief
A claim has plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.
Rule Block – Courts have interpreted Rule 8(a)(2) as stating specific facts which are not conclusions, th
Rule 15(b)(2)
Allows new issues to enter at trial with consent of the parties
Express or Implied consent
Implied consent is likely to be found to exist if no objection is raised to the introduction of evidence having no relevance to issues raised in the pleadings
Rule 15(c): Relation back Amendments
Allows you to bring in a new party before trial
Krupski v. Costa Crociere
Only use this rule if SOL (statute of limitations) has expired
An amendment relates back to the date of the original pleading when:
It is permitted bylaw
Amendment asserts a claim or defense that arose out of the STO (same transaction or occurrence) as in the original complaint
Amendment changes the party or naming of party against whom a claim is asserted
Same transaction or occurrence 3 Elements TEST
Whether the legal and factual issues raised by the claim and counter claim are largely the same
Whether substantially the same evidence supports or refuses both the claim and the counterclaim; AND
Whether there is a logical relationship between the two claims
If adding a party:
Within 120 days, the party being brought in must have notice (they knew or should have known) of the action to avoid being prejudiced on defending on the merits; and
Must have notice that it was an intended party, but for a MISTAKE concerning the proper parties identity
Rule 15(d) – Supplemental Pleading
Plaintiff has filed complaint, but discovered new facts after the complaint was filed.
These facts were unknown at the time P filed its complaint
Adds new information that has occurred after the complaint was filed
